A v Legal Complaints Review Officer [2013] NZHC 1100 (15 May 2013)

Last Updated: 26 July 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-234 [2013] NZHC 1100

UNDER the Judicature Amendment Act 1998

IN THE MATTER OF an application for judicial review

BETWEEN A

First Plaintiff

AND B

Second Plaintiff

AND LEGAL COMPLAINTS REVIEW OFFICER

First Defendant

AND MANAWATU STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY Second Defendant

Hearing: 22 and 23 April 2013

Appearances: J R Billington QC and R J Latton for the Plaintiffs

P Collins for the First Defendant

B Brown QC and V Casey for the Second Defendant

Judgment: 15 May 2013

_{RESERVED JUDGMENT OF FOGARTY J}

Summary of this decision

[1] The law insists on due process, particularly when a person is threatened with the loss of property, or office, or status. It is in this legal context that the law scrutinizes the statutory powers to discipline lawyers, as such a consequence can

_{impair their careers, lower their status and impose loss of income.}

A & B V LEGAL COMPLAINTS REVIEW OFFICER & Anor HC WN CIV-2013-485-234 [15 May 2013]

[2] The case is about the application of s 12 of the Lawyers and Conveyancers

Act 2006, which provides:

12 Unsatisfactory conduct defined in relation to lawyers and incorporated law firms

In this Act, unsatisfactory conduct, in relation to a lawyer or an incorporated law firm, means—

(a) conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer; or

(b) conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct that would be regarded by lawyers of good standing as being unacceptable, including—

(i) conduct unbecoming a lawyer or an incorporated law firm;

or

(ii) unprofessional conduct; or

(c) conduct consisting of a contravention of this Act, or of any regulations or practice rules made under this Act that apply to the lawyer or incorporated law firm, or of any other Act relating to the provision of regulated services (not being a contravention that amounts to misconduct under section 7); or

(d) conduct consisting of a failure on the part of the lawyer, or, in the case of an incorporated law firm, on the part of a lawyer who is actively involved in the provision by the incorporated law firm of regulated services, to comply with a condition or restriction to which a practising certificate held by the lawyer, or the lawyer so actively involved, is subject (not being a failure that amounts to misconduct under section 7).

[3] Professional skills are acquired by study, training and practice. This is as true for law as it is for medicine and engineering. There is a long history of senior lawyers training junior lawyers “on the job.” This is a practice in the public interest, as it enables the continuity of skilled lawyers available to the public. It is in this factual context of training that the issues in this case fall to be examined.

[4] A senior prosecutor (“A”) gave his junior (“B”) his first opportunity to open for the Crown in a homicide case. His junior made a mistake. The leader A could have picked it up before it happened by more rigorous examination of B’s draft

opening address. He did not. It was rectified by the Judge, directing the jury to ignore it. The verdict of guilty of manslaughter was not appealed. There is no suggestion it was the wrong verdict.

[5] The defence counsel complained that what happened was not a mistake, rather was a deliberate, calculated step taken to prejudice the jury in favour of the Crown. The finding was that there was no evidence at all in support of that claim. What happened was a mistake, an error, no more.

[6] A was found, however, to have “fall[en] short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.”1 He was also found to have failed to act fairly and impartially at all times, in breach of rule 13.12 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and s 12(c) of the Act. He was fined $6,000 by the Standards Committee, a decision confined on review by the Legal Complaints

Review Officer (LCRO). A is now at risk of losing his status and income as a senior prosecutor.

[7] B, his junior, was likewise found to have fallen short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. His conduct was also found to be unacceptable, in breach of s 12(b), and thirdly (likewise with A), found to have failed to act fairly and impartially at all times. He was fined $2,000 by the Standards Committee, increased to $4,000 by the LCRO. B is now at risk of losing his chance of practicing law to the senior level as a Crown prosecutor.

[8] This is an application for judicial review against the Standards Committee (not pursued), and against the LCRO. A large number of grounds were advanced. Many were criticised as inviting this Court to conduct a merits review. This the Court will not do. One of the allegations of error of law was against the finding of

_{the LCRO that a lawyer’s inexperience was not a factor in disciplinary proceedings.}2

1 _{Lawyers and Conveyancers Act 2006, s 12(a).}

2 Amended Statement of Claim, paragraph 38.9.

The LCRO found that B’s main defence is his inexperience.3 That she did not accept that a lawyer should be able to raise inexperience as a defence to disciplinary sanction for breaching professional standards.4 That she did not accept inexperience explained the failures in this case.5

[9] The central issue in this case is whether the adjudicator correctly understood s 12, particularly the qualifier “entitled to” in s 12(a). That qualifier requires the adjudicator to presume that “a member of the public” will be appropriately informed of the context, here one of training and supervision of a junior gaining experience. That context makes relevant consideration of the value and risks inherent in training. These considerations apply also to s 12(b) and (c).

[10] There was no analysis which demonstrates that the LCRO did take into account these considerations, and some analysis which indicates she did not. On the probabilities she did not. Thereby her reasoning, in my judgment, demonstrates error of law.

[11] I have found that this is a material error of law. Her decision is quashed.

[12] I have rejected an application that the matter not be remitted back. The matter will be remitted back for further consideration, on terms to be settled after further submissions from counsel.

The facts: the mistake and its rectification

[13] A & B were prosecutors in a manslaughter case. A woman had died. She had been the customer at a bridge jump. This was a business offering the thrill of being thrown from a bridge, attached to a rope. She died because the rope had not been properly tied to the bridge. The accused was the person who was responsible for

_{fitting customers to a harness and tying the rope to the bridge.}

3 _{At [88].}

4 _{At [89].}

5 At [90].

[14] The trial issue was whether or not he was grossly negligent. Twenty-five witnesses were to be called. One of the witnesses was a Ms H. She was to be the next person to be fitted with a harness, after the lady who died.

[15] The Crown theory of the case was that the accused had been distracted by H’s presence and, for that reason, had failed to properly tie off the deceased to the bridge. H was interviewed. In her statement to the police, she had said that she had met the accused on the internet, and that he had told her he was unmarried. This comment was not included in the deposition statement prepared for her for the purpose of the preliminary hearing of the charge. Nor was the comment led in her evidence at the preliminary hearing by the Crown. The defence team had in its possession the original police statement and the deposition statement. Given that her comment was not part of the deposition statement, they did not think that the Crown would lead that evidence – “he told her he was unmarried” – at the trial.

[16] When delivering the Crown’s opening address, junior counsel B informed the jury that the Crown contended that H had met the accused on the internet, and had told her he was unmarried. B went on to inform the jury that this was untrue.

[17] Immediately following the Crown’s opening address, Ronald Young J, the trial Judge, retired the jury.

[18] When commencing the hearing in chambers, the Judge advised counsel that he considered that these remarks had placed the accused’s character in issue, making an assertion that the accused had acted deceitfully (ie, that he had told H something that was “untrue”). At that stage, Mr Squire QC told the Judge that the comment about being unmarried was not contained in Ms H’s deposition statement.

[19] The Judge asked B whether there was evidential foundation for the comment.

He said it was contained in H’s statement.

[20] A took over at this point, apologised and told the Judge that the comment should not have been made.

[21] There was an adjournment so Mr Squire QC could take instructions. After the adjournment, Mr Squire QC applied for a mistrial. Ronald Young J refused to order a mistrial, and addressed the jury in the manner set out in his ruling.

[22] The relevant passages in his ruling are as follows:

[7] Counsel for the Crown confirmed that there was no evidence currently in any witness brief discovered to the accused or before me which disclosed the assertion made by Crown counsel. The Crown said however they had evidence to support the assertion. After discussion I advised the Crown that had the Crown identified that it wished to call such evidence I would not have allowed them to do so. I advised that in my view the probative value of the evidence was low if nonexistent with clear prejudice. The evidence was not needed to support the assertion that the accused was distracted when it came to the deceased’s jump. The prejudice was clear given it involved what appeared to be an assertion of deceitful conduct by the accused.

...

[9] After hearing counsel submissions I concluded that I should not end the trial and that with a warning by me to disregard that evidence the trial could proceed. I accordingly warned the jury in the following terms:

Ladies and Gentlemen,

Sorry to delay your return, you will understand why in just a moment. What I did mean to say to you when I first opened is from time to time there are issues arise that I need to discuss with counsel in your absence because there are rules about evidence, what can be said and what can’t be said and we have got to obey them and its obviously generally appropriate to sort that out without you being there.

Just something I want to mention that was said in the opening, I don’t want to make it a big thing but I do want to be clear about it, this was when the Crown were talking about a [Ms H] who the Crown had suggested was the next person who was going to be fitted with the harness and that the accused was attending to her and he may have been distracted when he was attending to her rather than attending to the young woman who died. And during the course of that reference Crown counsel said that they had had some contact on the internet previously and that the accused had told [Ms H] he was unmarried and that wasn’t true. Well that’s completely irrelevant to this case it has nothing to do with it. Crown counsel said that in error, they shouldn’t have said it and I know that you will ignore it and set it to one side and that was the subject of the discussion and the reason why I have said it to you.

[10] I was satisfied that although there was some prejudice to the accused my immediately [sic] correction of the assertion made by counsel for the Crown, my description of it to the jury as an error and as prejudicial material they should ignore it was, in my view, sufficient to cure the modest prejudice from the statement. Given the trial at that stage still had almost three weeks to run I thought it unlikely that the comment would be a factor which would influence the jury at all when they came to deliberate.

[11] I therefore refused the application to end the trial.

The complaint

[23] About a month after the trial, Mr R B Squire QC wrote to the complaints service of the New Zealand Law Society to report what he believed to be misconduct by A and B, within the meaning of s 7 of the Lawyers and Conveyancers Act 2006, being conduct which would be reasonably regarded by lawyers of good standing as disgraceful or dishonourable, or alternatively comprise a wilful or reckless contravention of r 13.12(b), (c) and (d) of the 2008 Rules.

[24] Mr Squire QC expressed this view:

In my view, the conduct of the Prosecutors [A] and [B] in opening the Crown case to the Jury by reference to the comments referred to above, was a deliberate, calculated and deceitful attempt on their part to prejudice [the accused] in the eyes of the Jury which was to try him. Although the opening address was given by [B] who appeared as Junior Counsel, it is unthinkable [A] who appeared as Senior Counsel would not have been aware of what [B] was to say in his opening address and indeed I have information to the effect it was originally intended [A] would give the opening address to the Jury and did not do so only because he was suffering ill health on the day the trial opened.

[25] Pausing here, that belief as to the events was rejected during the ensuing process. At the second hearing, the LCRO held there was no evidence in support of it.

The first hearing

[26] The complaint was first heard by a Standards Committee of the New Zealand Law Society (two lawyers and a layperson). Procedurally the hearing was a mess. Notice of the hearing was sent to the parties on 23 December 2010. The notice was that it was to be conducted on the papers. It invited submissions, to be received no later than 5.00 pm on Tuesday 18 January 2011. It will come as no surprise to the reader that this notice did not reach all the parties over the summer break, and particularly did not reach the lawyers acting for A and B. Mr Squire QC received it, and responded by further submission on 17 January 2011. The solicitors of A and B first wrote on 26 January 2011, indicating they had only just become aware of the

notice of the hearing, and explaining that was why no more submissions had been received by the Standards Committee.

[27] The Standards Committee determined that there had been unsatisfactory conduct on the part of B, considering that his actions fell short of the standards required of prosecutors, and, as such, constituted unsatisfactory conduct on his behalf. It ordered him to be censured6 and to pay a fine of $2,000 together with costs of $500 plus GST.

[28] In respect of A, there was a similar finding of unsatisfactory conduct on the part of A. Including that he was responsible for the actions of his junior counsel. He was also censured and fined $6,000 plus GST and costs.

[29] I am not setting out a number of prejudicial findings made by the Committee against A and B. This is because A and B did not get a fair hearing, due to the notice on the eve of Christmas of the hearing, and their non-participation in the hearing, due to the hearing proceeding, notwithstanding there being no response from them.

[30] It is important to keep in mind that where there is a real risk that the adjudicators have not fairly heard both sides of an argument the conclusions are likely to be unreliable. They should be disregarded. Even reading them can have an anchoring effect on subsequent evaluation. The decision of the LCRO amended the Standards Committee decision, but left most of it intact.

[31] Counsel agreed that the procedural problems with the first hearing were remedied by the second hearing before the LCRO. Second, allied with that remedy, neither party pursued judicial review based on the results of the Standards Committee hearing.

Judicial review issues in respect of Legal Complaints Review Officer’s decision

_{[32] The pleadings against the LCRO divide into three parts:}

6 Lawyers and Conveyancers Act 2006, s 156(1)(b).

(a) Breach of natural justice/procedural unfairness. (b) Error of law.

(c) Mistake of fact.

[33] The pleadings in respect of breach of natural justice and procedural fairness allege: that the LCRO ascribed statements to the plaintiffs which were not in fact part of their submissions, admissions that were not made, and denied the plaintiffs the opportunity to adduce additional material from the trial Judge. They also argue that the LCRO decision-making process in relation to the finding that B’s conduct was intentional and at the upper end of wrongdoing breached the rules of natural justice, because there was no evidence of any probative value on which to base the finding, B was given no indication that such a finding might be made, and B was denied the opportunity to adduce additional evidence and submissions before such a finding was made.

[34] Under the “mistake of fact” heading, it was pleaded that the LCRO made obvious mistakes concerning verifiable established facts which were material to its

_{decision. In the particulars, it said the LCRO:}

Said the trial Judge described the comments as highly prejudicial, when in fact he said they were of modest prejudice and could be

_cured.

Found the plaintiffs admitted failing to disclose information, when in fact they admitted inadvertently including the comments in the Crown’s opening, when the comments were not to be part of any

_evidence.

Found that A admitted the prosecution did not disclose it was part of the Crown’s case that the accused was distracted from his work by the witness, when A made no such admission.

Found that A made a number of failures, when in fact the only failure

was the failure to pick up the comments included in the Crown’s

_opening.

Stating that B admitted that the Crown failed to disclose certain

_{material, when no such statement was made by him.}

Found B said he did not realise the Crown’s intention to use the information had not been disclosed, when B never said any such

_thing.

Found B attended the depositions, when he did not.

Found B was experienced in presenting High Court trials, when B had appeared as junior counsel in three High Court trials.

Found that A had told B there was to be no salacious aspect to the

_{case, when there was no evidence.}

[35] Amidst the “error of law” pleadings, the particulars allege that the LCRO considered the complaint on the basis that the comments of B amounted to evidence being put to the jury which had not been disclosed to the defence, and that the comments were not evidence. That the LCRO had misdirected itself as to the nature of the complaints, treating it as a failure of the plaintiffs to disclose evidence the Crown intended to call. In fact the complaint was alleging deliberate misconduct. That r 13.12(a) formed no part of the complaint. The LCRO misdirected herself in the application of the Crown Prosecution Guidelines, ignored uncontested expert evidence of the late John Haigh QC; and substituted her own ruling for that of the trial Judge, finding that the trial Judge described the comments as an error to the jury, when that was not in fact the trial Judge’s view.

[36] Both Mr Brown QC for the fourth respondent and Mr Collins for the first respondent (heard in that order) repeatedly warned this Court from treating this judicial review as an appeal on the merits, and from engaging in issues as to fact.

[37] I am satisfied even to engage in these pleadings will envelop this judgment into examination of the facts, which would be close to a merits examination. It is always possible to plead error of law by reason of there being no evidence. Such an argument rarely succeeds. It is only embarked on by a Court on review with great care, and normally in a relatively stark situation.

[38] As appears from the summary of the decision, I am of the view that there is a clear error of law, being the very last pleading under error of law, as set out in the summary. Also explained in the summary, I am of the view that it is a material error of law, which of itself warrants the case being remitted back.

[39] For these reasons, I think that the reconsideration by the LCRO could be imperilled by an unnecessary examination of the allegations of misunderstanding of the facts and confusion, which I have just summarised above.

[40] For this reason, I propose not to engage on those pleadings. Hereafter, I will be citing paragraphs from the LCRO, which touch on some of those matters, but only because they are paragraphs which also contain propositions of law, which I underline. The analysis as to error of law is upon the underlined passages of the material. It is, however, necessary to set out the whole paragraphs, so that those underlined passages can be seen in context. I have also highlighted material facts which make relevant consideration of the value and risks of training.

The second hearing

The review by the Legal Complaints Review Officer

[41] The parties agree that a review is broader than an appeal. It enables fresh evidence to be led. It does not carry a presumption that the Standards Committee decision is correct. See Deliu v Hong.7

[42] This hearing took place in May 2012, before Ms Hanneke Bouchier, the

_{LCRO. During 2011 and into 2012, the LCRO had received further submissions}

7 Deliu v Hong [2012] NZHC 158, Winkelmann J.

from the original complainant, from A and B, a statement by an expert (the late John Haigh QC), briefs of evidence from A and B, more correspondence, and then had a hearing. About seven months after the hearing came the decision.

[43] The case before the LCRO was twofold. Mr Squire QC was seeking a review of the Standards Committee decision, pursuing his complaint of misconduct. A and B were reviewing the decision, and in addition to raising procedural errors or improprieties on the part of the Standards Committee, were contending that the Committee had failed to consider the essential legal ingredients of the matters that would lead to a finding of unsatisfactory conduct in terms of the Act. They were arguing that inasmuch as the opening referred to irrelevant evidence, it amounted to an unintentional lapse, the type of which is made from time-to-time in a courtroom, and should not attract any sanction.

[44] Having narrated the facts, set out above, the LCRO turned to the applicable standards, setting out s 7, which defines misconduct, and s 12 of the Act set out above, which defines the lesser degree of fault: unsatisfactory conduct.

[45] She also referred to r 13.12 of the Client Care Rules, and the Crown Law

Office’s Prosecution Guidelines, and s 168 of the Summary Proceedings Act 1957:

[47] The professional rule particularly relevant to Crown lawyers as prosecutors is Rule 13.12 (of the Rule of Conduct and Client Care). This states a prosecuting lawyer must act fairly and impartially at all times and in doing this must –

(a) Comply with all obligations concerning disclosure to the defence of evidence material to the prosecution and the defence; and

(b) Present the prosecution case fully and fairly and with professional detachment; and

(c) Avoid unduly emotive language and inflaming bias or prejudice against an accused person; and

(d) Act in accordance with any ethical obligations that apply specifically to prosecutors acting for the crown.

[48] The above obligations are further elaborated in the Crown Law Office’s Prosecution Guidelines, particularly at 15.11 which provides that a trial may be adjourned or the jury discharged if the accused has been prejudiced by the surprise production of a witness who has not made a deposition. “Therefore in practice the prosecutor should provide adequate

notice of intention to call any additional witness and provide the defence and

the Court with a brief of the evidence that witness will give.”

[49] Section 168 of the Summary Proceedings Act 1957 sets out the obligations on a prosecutor to file formal written statements within a certain period:

(1) The prosecutor must file in the office of the Court the formal written statements that form all or part of the evidence for the prosecution for the purposes of the standard committal or at the committal hearing, as the case may require, together with the exhibits referred to in those statements, not later than –

(a) 42 days after –

(i) the date on which the defendant elects trial by jury under section 66; or

(ii) if the information is laid indictably, the date on which the defendant first appears in Court in relation to that information;

(b) such earlier or later date specified for the purposes of this section by a District Court Judge.

[46] I focus on the question as to whether or not the LCRO, in the context of this case, had correctly understood s 12. Mr Collins on behalf of the LCRO submitted that:

The wording in s 12(a) and (b) is sufficient on its own for an appraisal of the conduct to be undertaken by the Standards Committee or the Review Officer: “conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer” and “conduct that would be regarded by lawyers of good standing as being unacceptable”. Those bodies are entrusted by the statute to determine what those standards require in any particular case.

[47] Standards make relevant different considerations depending upon context. So the application of the standard careless use of a vehicle when changing lanes on the Auckland Harbour Bridge at rush hour, will make relevant different considerations than application of the same standard to overtaking on the Crown Range on a trip to Queenstown on an icy morning. This reasoning is essentially the same as that in

Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd,8 approving the

_{“definitive” judgment of Lord Greene in the Associated Provincial Picture Houses}

8 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC).

Ltd v Wednesbury Corporation, set out at 389 in Mercury.9 This is because express discretionary powers employ standards and principles. Section 12(a), (b) and (c) likewise employ standards, which have to be applied in different contexts, raising different considerations, “by implication”.10

[48] Other than setting out s 12 at the outset of her analysis, along with s 7, r 13.12 and s 168 of the Summary Proceedings Act, there was no identification by the LCRO as to what considerations were made relevant by the facts of this case.

[49] If, in the course of the reasoning of an adjudicator when applying a standard, the adjudicator fails to take into account considerations clearly made relevant by the context, or takes into account considerations clearly irrelevant to the context, such deliberations can, on the record, manifest an error of law. That is the ultimate question. As the Privy Council said in Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd:11

Judicial review [is] judicial invention to secure that decisions are made by the executive or by a public body according to law...

[50] In the ensuing analysis, I use bold font to identify key contextual facts, and underlining to identify arguable errors of law. The italicising is in the original decision.

[51] The LCRO did make a number of findings of fact as to the context. I

summarise these:

(i) She found that the trial Judge did perceive the opening address to be prejudicial to the defendant, and found this was more than an error.12

(ii) She found A was lead prosecutor and had overall responsibility for the conduct of the trial, and B acted as his junior and that he had main

9 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, at 228-

_230.

10 _{Lord Greene MR in Wednesbury, cited in Mercury at 389.}

11 _{Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385, at 388.}

12 At [58].

responsibility for preparing the trial.13

(iii) She found that A was lead Crown prosecutor in this trial, and accepted he had an overall responsibility for its conduct, although his role was largely supervisory, “although his active involvement is apparent from his attendance at the pre-trial hearing, and also his regular contact with the police and meetings with B who was doing the main body of the work”.14

(iv) She summarised A’s evidence as follows:

[64] [A]’s evidence may be summarised as follows:

that he was aware that there was a “potential salacious element in this case” that he “determined would not become a feature of the case or of the trial”. He had made this clear to the investigators and he also expressed this view to [B];

that in the course of his supervision of the preparation of the trial there were many conferences with [B] and the police relating to witnesses and evidence, and that he had reviewed the Crown’s responses to the pre-trial applications and had appeared at the pre-trial hearing in the High Court;

that he had allowed [B] to prepare the Crown’s opening address in order to gain experience in prosecuting, and that it was “good practice for a prosecutor to work from the witnesses’ original witness statements in preparation for a trial”;

that he reviewed the Crown’s opening address, returning it

to [B] with his thoughts and some corrections;

that he read the opening address at least 2-3 times, and in approving the final form he had “missed the reference to the defendant’s comment about his married status being untrue”, and would have removed it if he had noticed it;

that the main focus of his [and B’s] attention was on the complexity of the jumping apparatus that led to the death of a young woman; and

that the information was not very prejudicial and the trial Judge

_{had referred it, and accepted it, as an ‘error’.}

13 _{At [61].}

14 At [62].

[52] After referring to counsels’ submissions that it was a low level error and a

mere mishap with no prejudice to the public, she then went on to make findings:

[66] I accept that [A’s] role was essentially overall supervision, making it his responsibility to ensure all matters were properly attended to. This means that he must be held accountable even where an error or omission may have been made directly by others. It was his responsibility to ensure that these errors did not occur.

[67] His involvement was not inconsiderable. He was present at the pre- trial hearing and appears to have had regular contact with the police and also with [B] who was doing the main preparatory work. It appears from [A’s] evidence that [B] was given the task of preparing the opening address in order to gain more experience. This gives some indication that he recognised limitations with regard to [B’s] experience.

[68] [A] also assumed some responsibility for [B’s] failure to have complied with his directive to exclude any reference to salacious information. As appears from his submission:-

I accept that if I had been firmer with [B] about my reasoning for not including any reference of such a nature, he would have not included it in his draft opening. As it was, [B] did not have full understanding on this aspect of the case.

[69] [A] had reviewed the opening address as it was being drafted by [B], and explained that his main focus was on achieving simplicity given the potential for difficulties in understanding the technical elements of the swing and the legal complexities of the charge. [A] wrote:

I believe that I then reviewed an amended version of the address. My key concern was to achieve simplicity. In my focus in approving an address in final form, and having read the address at least 2-3 times, I missed the reference to the defendants comment about his married status being ‘untrue’.

I simply missed it. Had I picked it up, I would have removed it. I

would have removed it for the reasons set out in paragraph 13.

[53] After that, the LCRO then moved to her evaluation:

[70] Criticism may be made of [A] at several junctures, all of which essentially come to a failure of focused attention in his supervising role. In that role he failed to ensure that the Crown’s obligation of disclosure had been properly and fully complied with.

[71] He also appears to have failed to notice that certain evidence that was intended to be used by the Crown (that the accused had met H on the internet) was not led at the depositions. This seemed surprising given that it was intended to be part of the Crown case that the accused was distracted from his task.

[72] [A] had directed that no ‘salacious material’ (being the ‘illicit’ interest of the accused) was to form part of the Crown’s case, yet despite checking drafts of the Crown’s opening address (which he claimed to have read “at least 2-3 times” before approving it), he failed to notice that it included information that he expressly directed should not be included.

[73] Where there is one failure, and of a minor nature, an oversight may be accepted. However, in this case there were a number of failures, all of which evidenced a lack of focus and attention to the work being done under [A’s] supervision, and with a potentially serious result. These should not be perceived as if they were minor matters. They were not. [A’s] failure to have carried out his supervisory role in a professional manner led to there being unnecessary complications for the accused. [A] may have misjudged the extent of [B’s] ability to work independently, but he was undoubtedly aware of the level of [B’s] experience, and supervision was within his overall responsibilities.

[74] Having considered the complaint, the evidence, the surrounding circumstances and the explanations that have been made I do not find sufficient evidence to support the complaint as made by Mr Squire. That is, I can find no evidence of any intention on [A’s] part to introduce prejudicial information to the jury that had not previously been disclosed to the defence, as alleged. A serious allegation such as this would need a sound evidential basis, and would need to have excluded any other likely explanation. The most likely explanation, in my view, is that which was given by [A] himself, namely that he failed to notice the inclusion of the information.

[75] However, there can be little doubt that there was a breach of the applicable standard as defined in section 12(a) of the Act. In particular there was “conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer”.

[76] There was also a breach of the obligations imposed on prosecuting lawyers by Rule 13.12(a) of the Conduct and Client Care Rules, an obligation that fell squarely on him as supervisor with overall responsibility for the way the Crown ran the trial. This falls within the definition of unsatisfactory conduct as defined in section 12(c) of the Act. In my view [A’s] conduct reached the threshold anticipated by the section 12 definition of ‘unsatisfactory conduct’, as failing to reach the required professional standards.

[77] While I accept that the omission was not an intentional one, it nevertheless resulted from a failure of due attention by [A] on his supervisory responsibilities. This responsibility was significant as [A] was the senior prosecutor in charge of running the trial. His admission that there was a failure to disclose certain information to the accused and that he overlooked the inclusion of information he directed should not be included are tantamount to admissions of failure to have adequately supervised the preparations.

[78] I do not accept that [A] should escape disciplinary censure by reason of not having intended the oversights. These matters were squarely within his responsibility, and are not answered by his lack of actual awareness of matters that he ought to have checked. There were culpable oversights and

he should be held to account. In my view the Committee’s finding of

unsatisfactory conduct was correct.

[79] This means that, insofar as this review relates to [A], I reject the submission that he was involved in a calculated and deliberate intention to place in front of the jury prejudicial information about the accused without prior notice to the defence that the information would be used. I accept [A’s] explanation, and find that his failures were of supervision. Had he discharged these duties, the complaint is unlikely to have been made. There is no part of [A’s] conduct that could reach the degree of wrongdoing required by the Act’s section 7 definition of ‘misconduct’.

[54] She then turned to B, and reasoned as follows:

[80] [B] was junior counsel in the prosecution. He undertook the preparation of the Crown’s case, drafted the opening address presented to the jury. He worked under the supervision of [A].

[81] [B] provided only one response to the allegations personally (all other responses or submissions were provided by [A] or Counsel). [B’s] own written submissions may be summarised as follows:

He prepared the opening submissions for the jury;

He considered and carefully prepared the information; He got [A] to check it;

He did not appreciate that the information was prejudicial;

He did not realise that the Crown’s intention to use the information

had not been disclosed to the defendant; and

He has limited experience in criminal prosecution cases.

[82] [B] explained that he prepared the Crown opening address by working from the original statements given by witnesses to the police, using a “cut and paste” approach in preparing the Crown’s opening address. [A] had submitted that working from the original statements of witnesses was a safe way to proceed in preparing the Crown’s case.

[83] [B] appears not to have checked whether all information intended to be used by the Crown had in fact been disclosed to the defence. In relying on the original police witness statements he failed to check these against the deposition statements. I noted that was a significant variance between these statements.

[84] The defence was entitled to rely on the Crown’s case being based on the evidence and material presented at the pre-trial, even though both statements were the possession of the defence. It was [B’s] responsibility to ensure that evidence to be led as part of the Crown’s case, including the opening address, had been disclosed to the accused. His admission that he “did not realise that the Crown’s intention to use the information had not been disclosed to the defendant” indicates his awareness of the disclosure

obligation, and amounts to an admission of failure to carry out that obligation, and his responsibilities, in a professional manner.

[85] [B] had also attended the depositions hearing, at which no mention was made of the material which the Crown apparently intended should form part of its case against the accused. If he subsequently decided that comments made by H were to be included after all he ought to have written to the defence team of this intention, and likewise informed the Court. However, after the depositions hearing [B] proceeded to prepare the Crown’s opening address which included the comment, without first ensuring that there was disclosure to the defence of the Crown’s intention to use it. He likewise omitted to inform the Court, which had only the deposition statements.

[86] [B’s] further failure was not having followed the direction given by his senior colleague. [A’s] evidence referred to the “potential salacious element” in the case and his determination that this would not become a feature of the case or the trial. [A] wrote,

There was never intended by me to be any suggestion that the defendant was distracted by his personal or illicit interest in Ms H and thereby caused the death of... I made this clear to the investigators and I expressed this view to [B].

[87] [B] did not dispute that [A] had given this direction. His explanation was that he did not appreciate that the information was prejudicial.

[88] [B’s] main defence is his inexperience. He provided information about his previous work history in criminal cases. Counsel had submitted that [B] was an inexperienced lawyer. However, I noted that Dr Webb had earlier described [B] as an experienced criminal lawyer. The Standards Committee had also perceived him as experienced, its decision stated, “[h]e is experienced in presenting High Court trials and must be aware of his duties as prosecuting counsel.”

[89] It is not necessary for me to comment on the issue of inexperience for the reason that I do not accept that a lawyer should be able to raise inexperience as a defence to disciplinary sanction for breaching professional standards. Lawyers are expected to be familiar with their professional obligations, and either act independently in a manner that complies with those obligations, or alternatively come under the supervision of a senior and follow their directions, seeking assistance in matters that are not clear. Lawyers need to be aware of their limitations and to not undertake work that they consider they are not competent to undertake.

[90] In any event I do not accept inexperience explains the failures in this case. Even if it is accepted that he had limited experience (although I make no observations about this), the failures in this case are not readily explained by a want of experience.

[91] First, I find it wholly surprising that a lawyer who has worked in the field of criminal law to the extent that [B] has admitted could have failed to appreciate the prejudicial nature of a suggestion of dishonesty. He is a qualified lawyer, and with the practical experience he has had, I do not

accept as plausible that he could have been ignorant of the prejudicial nature of the information in this case.

[92] Second, it was incumbent upon him to have followed specific directions given by the lead prosecutor, who had directed that no salacious material was to be included in the Crown’s case. If [B] had any doubts about what was meant by ‘salacious’, there is no evidence that he clarified this with [A], which I consider extraordinary given that [A] must have intended something by the specific directive. If, as he claimed, he is inexperienced it is all the more surprising that he did not do so. I do not accept that a failure to follow a directive of senior counsel is explained by a want of experience.

[93] Third, inexperience does not explain the failure to have checked that there had been disclosure to the accused of information that should have been disclosed pursuant to the duty to do so. He was part of the prosecution team, with knowledge of the scope of evidence that the Crown intended to lead. He ought to have been aware that this evidence was not part of the depositions evidence. [B] was clearly aware of the Crown’s obligation of disclosure; his explanation was that he had not realised the information had not been disclosed. The most likely explanation is lack of proper attention to the task.

[94] Finally, [B] drafted the opening address for the Crown and submitted that he “considered and carefully prepared the information”. He had perceived H’s evidence (that she had met the accused on the Internet who had told her he was unmarried) to be of sufficient importance to have included it in his opening address to the jury, adding that this was untrue. I reach the inevitable conclusion that [B] intended the jury be informed of something about the character of the accused and that the information was calculated to leave a negative impression.

[95] All of the above acts and omissions combine to raise serious issues about his professional conduct. I am of the clear view that [B] has breached Rule 13.12 and that his failure at the very least reaches the definition of “unsatisfactory conduct” under section 12(a), (b) and (c) of the Act.

[55] From [67] of her decision, it is plain that the LCRO appreciated that it was A’s evidence that B was given the task of preparing the opening address in order to gain more experience. There is no recognition, however, that in doing so A was discharging a duty held by senior practitioners in the public interest to up-skill by training less experienced practitioners. Second, there was no recognition that in this context the training does not rule out mistakes, but reflects the judgment that any mistakes will be able to be rectified. When a senior practitioner undertakes this training exercise, it is not traditionally regarded within the profession that the practitioner is professionally responsible for any mistakes that occur.

[56] Likewise, when the junior practitioner is given the opportunity to up-skill, it is not understood that the junior practitioner becomes automatically responsible for

any mistakes that he might make. [84] of the LCRO’s reasoning seems to assume that there was an automatic liability, so that a failure not to realise was an admission of failure in the sense of culpability. [89] is a clear error of law. It reflects an interpretation of s 12(a) which rules out junior lawyers stepping up to a new experience.

[57] In oral argument, counsel and the bench identified as the key qualifier in s 12(a) “is entitled to”. Without that qualifier, paragraph (a) would impose a test on conduct being what any member of the public would expect.

[58] Untutored members of the public, and indeed many lawyers, do not have any appreciation of the competence and diligence required in the conduct of a homicide trial dependent on proving gross negligence. Nor do members of the public generally understand the ongoing duty on senior members of the profession to train junior members of the profession in the course of the conduct of legal work.

[59] The Lawyers and Conveyancers Act 2006 is relatively new. It replaces the Law Practitioners Act 1982. Counsel before me advised that there has been little consideration of the meaning of s 12(a). Mr Brown QC submitted, however, that it is important to appreciate that one of the purposes of this Act was to make the profession more accountable to the public. This is partly reflected in lay representation on the standards committees and in the office of the LCRO who cannot hold a practising certificate. The Law Practitioners Act 1982 had already identified the need to take into account expectations of the public. This was in the context of applying a standard of examining whether a practitioner’s negligence or

incompetence: 15

...has been of such a degree or so frequent as to reflect on his fitness to practise as a barrister or solicitor or as to tend to bring the profession into disrepute.

[60] In Complaints Committee of the Canterbury District Law Society v W,16 a full

_{Court of three High Court Judges said:}

15 _{Section 112(1)(c) of the Law Practitioners Act 1982.}

16 Complaints Committee of the Canterbury District Law Society v W [2009] 1 NZLR 514 (HC).

[45] Whilst there may be no area of technical expertise where the New Zealand Tribunal holds an advantage over the District Tribunal, or for that matter the Court, where, as here, a crucial element is whether the practitioner’s acts were such “as to tend to bring the profession into disrepute” the presence of two lay members on each Tribunal – representing the public – is relevant. The New Zealand Tribunal did not hear evidence but the District Tribunal heard the practitioner, who was cross-examined. The appellant says some issues of credibility arise. If so, the District Tribunal had that advantage.

...

[82] We do not seek to set out every consideration that will be relevant in determining whether negligence is of that nature. We do not accept Mr McVeigh’s submission that a practitioner’s later failure to recognise his negligence is relevant to whether this conduct at the time (ie. the conduct with which he is charged) tends to bring the profession into disrepute. Nor do we agree with the New Zealand Tribunal (and supported by Mr Taylor) that the ultimate outcome (here, the practitioner working assiduously to pursue and effect a recovery for the contributors) is relevant to whether the conduct with which the practitioner is charged amounts to negligence of such a degree as to tend to bring the profession into disrepute. These matters may be relevant to the practitioner’s state of mind at the time of the charged conduct and to penalty, but they do not change the nature of the conduct with which the practitioner is charged. We do not think it is relevant to consider whether the conduct falls below what is to be expected of the legal profession and whether the public would think less of the profession if the particular conduct was viewed as acceptable.

[61] In W v Auckland Standards Committee 3 of the New Zealand Law Society,17 the Court of Appeal was applying the same provision in considering a judgment of Duffy J in the High Court. Duffy J had followed the full Court in Complaints Committee of Canterbury District Law Society v W.18 The Court of Appeal in [29] quoted from the reasoning of the Judge, at [66] and [67]. It is sufficient to set out [29], and I draw attention to the use of the qualifier “reasonable to members of the public”:

[29] Addressing the issue of whether W’s negligence or incompetence would

diminish the public’s view of the profession, the Judge said:

[66] ... The tenor of r 6.07 and the settled law on undertakings lead me to conclude that members of the public would expect practitioners to prepare precise, clear undertakings, whose meaning was at least understood by the practitioner responsible for drafting them. Members of the public would not expect practitioners to draft undertakings that did not represent their intent. Such persons would also expect practitioners to honour their undertakings, rather than to dispute their meanings. Furthermore, given the high levels of reliance placed on undertakings, members of the public would not expect that

17 _{W v Auckland Standards Committee 3 of the New Zealand Law Society [2012] NZCA 401.}

18 Complaints Committee of the Canterbury District Law Society v W [2009] 1 NZLR 514 (HC).

practitioners could later avoid honouring their undertakings on the ground that they were issued in haste or under pressure, such that the practitioner has mistakenly expressed himself or herself as to its terms. Thus, W’s actions do not accord with the expectations that I attribute to reasonable members of the public. I consider that they would see his conduct as falling short of those expectations.

[62] It seems to me that you cannot apply a standard of what members of the public are entitled to expect without confining the expectation to reasonable members of the public. Second, that such reasonable members are members of the public who apply reason to their judgments. This explains why Duffy J, at [66], lays the framework as to what members of the public would expect of undertakings.

[63] Members of the public generally would not expect junior practitioners to be trained during a trial, being given responsible and difficult tasks for the first time. This practice requires some explanation. It is longstanding, going back centuries. There is no doubt that senior practitioners in our legal system, and in all our counterpart legal systems, have a professional duty to train junior practitioners. I deliberately use the word “train”, because that is the customary description of the practice. A lawyer can have an academic education, and indeed a lot of experience, but unless the lawyer has been trained, he or she is likely not to acquire the skills necessary to be competent.

[64] There is no reasoning in the judgment of the LCRO which demonstrates an understanding of the demands and risks inherent in training practitioners. See, to the contrary, the LCRO’s reasoning in [67] and [73] in respect of A, and [84], [86], [89] and [91] in respect of B.

[65] Training always carries with it the risk of error, which will need correcting. It is undertaken in the face of that risk, allowing for the opportunity of correction. Unless s 12(a) is interpreted as prohibiting training, [89] is a clear error of law. I do not think s 12(a) needs to be read as ruling out training during a trial, and in the preparation phase. Read literally, it might be ruling out training. But training is incremental development of skills. A person has to be “reasonably competent” to go to the next step. Section 12 has to be read against the purpose of the Act. Section 3(1)(a) provides:

3 Purposes

(1) The purposes of this Act are—

(a) to maintain public confidence in the provision of legal services and conveyancing services:

...

[66] To maintain such public confidence, young practitioners need to be trained during trials. In that sense, a senior needs to reasonably assess that the time has come for a younger practitioner to step up to another level, under supervision. This Court can take judicial notice that such judgments can be difficult and do entail risk. It is indeed a frequent complaint by junior members of the profession that they are not properly trained, because training requires extra effort by the leader, and a certain amount of calculated risk that the junior will not make a mistake in the task assigned. Of course, it comes concomitant with very real duties of supervision.

[67] It is not an expectation of the profession that all training will be mistake-free. It is not the expectation of the profession that supervision of training exercises will eliminate mistakes. That is the key reason why the LCRO’s finding under s 12(b) cannot be sustained without further reasoning on her part.

[68] These considerations were partially recognised as relevant considerations by the LCRO. But not the recognition that risk was being taken in the public interest. This factor goes directly to assessment of whether the error reflects unsatisfactory conduct, and, if so, what should be the response of the LCRO.

[69] The purposes of the Act relevant to this appeal are contained in s 3(1) and

(2)(a) and (b):

3 Purposes

(1) The purposes of this Act are—

(a) to maintain public confidence in the provision of legal services and conveyancing services:

(b) to protect the consumers of legal services and conveyancing services:

(c) to recognise the status of the legal profession and to establish the new profession of conveyancing practitioner.

(2) To achieve those purposes, this Act, among other things,—

(a) reforms the law relating to lawyers:

(b) provides for a more responsive regulatory regime in relation to lawyers and conveyancers:

...

[70] Second, the identification of an error or mistake in the course of conduct of a proceeding does not call of itself for accountability to the public. Section 156 provides the Standards Committee with a discretion “may” to order a number of consequences, or imposing no consequences at all, as the powers are not in the alternative:

156 Power of Standards Committee to make orders

(1) If a Standards Committee makes a determination under section

152(2)(b), that Standards Committee may—

(a) order that all or some of the terms of an agreed settlement between the person to whom a complaint relates and the complainant are to have effect, by consent, as all or part of a final determination of the complaint:

(b) make an order censuring or reprimanding the person to whom a complaint relates:

(c) order the person to whom a complaint relates to apologise to the complainant:

(d) where it appears to the Standards Committee that any person has suffered loss by reason of any act or omission of a practitioner or former practitioner or an incorporated firm or former incorporated firm or an employee or former employee of a practitioner or an incorporated firm, order the practitioner or former practitioner or incorporated firm or former incorporated firm, or employee or former employee of a practitioner or an incorporated firm, to pay to that person such sum by way of compensation as is specified in the order, being a sum not exceeding, as the case may require, the amount that is from time to time prescribed for the purposes of this paragraph by rules made under this Act by the New Zealand Law Society or the New Zealand Society of Conveyancers:

(e) order the practitioner or former practitioner or incorporated firm or former incorporated firm to reduce his, her, or its fees for any work (being work which has been done by the practitioner or former practitioner or incorporated firm and which is the

subject of the proceedings before the Standards Committee) by such amount as is specified in the order:

(f) order the practitioner or former practitioner or incorporated firm or former incorporated firm to cancel his, her, or its fees for any work (being work which has been done by the practitioner or former practitioner or incorporated firm or former incorporated firm and which is the subject of the proceedings before the Standards Committee):

(g) for the purpose of giving effect to any order made under paragraph (e) or paragraph (f), order the practitioner or former practitioner or incorporated firm or former incorporated firm to refund any specified sum already paid to the practitioner or former practitioner or incorporated firm or former incorporated firm:

(h) order the practitioner or former practitioner or incorporated firm or former incorporated firm or employee or former employee of a practitioner or an incorporated firm—

(i) to rectify, at his or her or its own expense, any error or omission; or

(ii) where it is not practicable to rectify the error or omission, to take steps to provide, at his or her or its own expense, relief, in whole or in part, from the consequences of the error or omission:

(i) order the practitioner or former practitioner or incorporated firm or former incorporated firm, or employee or former employee of a practitioner or an incorporated firm, to pay to the New Zealand Law Society or the New Zealand Society of Conveyancers, as the case may require, a fine not exceeding

$15,000:

(j) order the practitioner, or any related person or entity, or both to make the practitioner's practice available for inspection at such times and by such persons as are specified in the order:

(k) order the incorporated firm to make its practice available for inspection at such times and by such persons as are specified in the order:

(l) order the practitioner or incorporated firm to take advice in relation to the management of his, her, or its practice from such persons as are specified in the order:

(m) order that the practitioner or any director or shareholder of the incorporated firm undergo practical training or education:

(n) order the practitioner or former practitioner or incorporated firm or former incorporated firm, or any director or shareholder of the incorporated firm or former incorporated firm, or any employee or former employee of the practitioner or

incorporated firm, to pay to the New Zealand Law Society or the New Zealand Society of Conveyancers such sum as the Standards Committee thinks fit in respect of the costs and expenses of and incidental to the inquiry or investigation made, and any hearing conducted, by the Standards Committee:

(o) order the practitioner or former practitioner or incorporated firm or former incorporated firm, or any director or shareholder of the incorporated firm or former incorporated firm, or any employee or former employee of the practitioner or incorporated firm, to pay to the complainant any costs or expenses incurred by the complainant in respect of the inquiry, investigation, or hearing by the Standards Committee.

(2) In paragraphs (j) to (l) of subsection (1), specified, in relation to any person, means specified either by name or as the holder for the time being of any particular office or appointment.

(3) An order under this section may be made on and subject to such terms and conditions as the Standards Committee thinks fit.

(4) The making of an order under this section for the payment of compensation to any person does not affect the right (if any) of that person to recover damages in respect of the same loss, but any sum ordered to be paid under this section, and the effect of any order made under this section for the reduction, cancellation, or refund of fees, must be taken into account in assessing any such damages.

(5) Where an order made under any of the provisions of paragraphs (d) to (g) of subsection (1) is binding on any practitioner, that practitioner and any person who is, in relation to that practitioner, a related person or entity are jointly and severally liable to pay any amount that is payable under the order.

[71] The power to fine is at subsection (1)(i). Section 156 falls within Part 7

Complaints and Discipline. Most of s 156 gives powers to remedy harm done. A fine is not such a remedy. It is a punishment. It is not inevitable that there will be use of any of the powers in s 156. The relevant opening word of s 156(1) is “may”.

[72] For these reasons, I am persuaded that the error of law pleading, paragraph

38(9), “finding that a lawyer’s inexperience was not a factor in disciplinary proceedings” is substantially upheld by an analysis of the judgment under review, and that it is an error of law.

[73] The question then becomes whether it is a material error of law. [90] through to [93] and possibly [94] can be read as finding that inexperience did not explain the failures in this case. I do not intend to embark upon a critique of this reasoning. It is

sufficient to say that the finding I have already made as to error of law means that in a substantive sense the LCRO has never framed the merit issues in this case in the context of a training exercise being undertaken by A for the benefit of B.

[74] An error of law will be material if its rectification and reconsideration might result in a materially different finding, one more favourable to the applicant for judicial review. Appreciating that the law requires the adjudicator to take into account the context of this case being a training exercise, there are subsidiary considerations which work in favour and against A and B. The fact that it is a training exercise is to be evaluated as to whether in the context the risks were worth taking in the public interest. Secondly, it comes with a concomitant duty of additional supervision on the part of the senior, and particular care on the part of the junior.

[75] I do not think that exercise has been done. I am left with an uncertainty as to what an informed judgment alive to these considerations would be in this case. Second, what powers, if any, would be taken advantage of under s 156. For these reasons, I think that the argument before me has identified material errors of law which warrant the intervention of the remedy of judicial review.

[76] The context of this being an error arising out of a training exercise flows through, for similar reasons, as a relevant consideration when applying s 12(b) and (c). There was no separate analysis of the meaning of s 12(b) and (c) in the LCRO judgment under review. It is plain that the LCRO thought her conclusions under s 12(a) flowed through to (b) and (c).

[77] The context of the training exercise is very relevant to the application of s 12(b) and (c), and again raises implicit considerations as to whether the risks were worth taking in the public interest. And judgments as to the concomitant duty of additional supervision and care on the part of the junior.

[78] At the end of the argument, it was agreed by counsel that if the judicial reviews succeed and the matter was to be sent back for reconsideration, I would hear from counsel first as to the terms upon which the case would be sent back. The

pleadings of the plaintiffs had pursued a simple quashing of the decision with no reference back. Mr Billington QC was not in a position to be able to argue for that before me, although it has occurred in a couple of other cases.

Conclusion

[79] The application for review succeeds. The decision of the LCRO is quashed by reason of error of law in the application of s 12(a), (b) and (c). The matter will be referred back to the LCRO for reconsideration. I will now await written submissions by counsel as to the terms upon which the matter can be reconsidered. If counsel are able to agree terms, a further hearing may not be necessary. If counsel cannot agree terms, I request separate memoranda, and reserve leave for counsel to apply for a further hearing. Costs are reserved.

Solicitors:

J R Billington QC, Auckland – [e-mail]

Kennedys Solicitors, Auckland – [e-mail]

Legal Complaints Review Officer, Auckland - [e-mail]

Paul Collins, Barrister, Auckland – [e-mail]

New Zealand Law Society, Wellington – [e-mail] [e-mail]